1. ' MUHAMMAD ZAMAN QURESHI (CHAIRMAN).---The Managing Director, House Building Finance Corporation has filed this appeal against Sajid Ali Cheema challenging the order dated 13-11-1996 of the Single Bench of this Commission whereby the appellant/respondent was directed to take the petitioner/respondent into service and thereafter if advised enquiry be held against him after providing full opportunity under the law to defend him. The brief facts of the case as mentioned in the petition by Sajid Ali Cheema are that the respondent/petitioner was employed in 1982 as P.S. On Sports basis. He started taking part in the union activities and to help the other employees due to which the management became inimical towards him. In October, 1990 he applied for ex- Pakistan leave to visit U.S.A. To attend his cousin who was seriously ill. 460 days leave was due to him. The authority demanded a copy of the Visa of U.S.A. Or telegram from the cousin of the petitioner which was never asked earlier from anyone else. As the condition of the cousin of the petitioner became more serious the respondent/petitioner approached the then Manager Administration, Zonal Office, Lahore namely Mr. A.B. Ansari to expedite the process of permission of leave but he gave permission to proceed to U.S.A. And said that the leave shall be sanctioned afterwards being a routine matter. Accordingly, the respondent left for U.S.A. From 22-12-1990. The respondent/petitioner made an application from America for extension in leave. The petitioner met with an accident due to which the backbone of the head of the petitioner was damaged and he was unable to move from the bed. The petitioner came back to Pakistan in July, 1995 and even at that time he was not in good health. The respondent/petitioner went to his office afterwards to join his duties but he was shocked to know that his services had been terminated on 9-9-1991. The action against the petitioner was due to his participation in the union activities which amounted to unfair labour practice. The procedure laid down by law had not been adopted before removing the respondent from service. No enquiry was held and no show cause was issued although the address of the petitioner in U.S.A. Was available with the management. It was prayed that the order dated 9-9-1991 passed by the General Manager Personnel, House Building Finance Corporation be set aside.
2. ' Written reply to the petition was filed and after arguments the respondent was reinstated through the impugned order.
3. ' The counsel for the appellant vehemently argued that the respondent was dismissed form service after he had failed to join duty on expiry of his ex-Pakistan sanctioned leave. A memo. Was issued to him on 3-3-1991 which was sent on his local address at Lahore but the respondent failed to resume duty and submit reply to the said memo. Instead a letter was sent on 3-3-1991 by one Dr. Abbas Ali Cheema claiming to be the brother of the respondent, wherein it was falsely stated that the official had informed the department for further leave on 19-12-1990. In fact the leave was sanctioned on 29-12-1990. The person who was named to have received his application, also denied that fact. The petitioner was finally removed from service according to the departmental rules. The respondent applied on 17-6-1995 to supply him Photostat copies of his personal file regarding termination, when he reached Pakistan in July, 1995 as stated in para. 6 of his petition. He was, therefore, rightly terminated. The petition filed by him on 26-6-1995 was highly time-barred.
4. Further, his termination was not on account of any lawful trade union activities but because of his unauthorised absence which did not constitute misconduct. No evidence was recorded by the Single Bench and therefore, no victimization on account of lawful trade union activities of the respondent was proved through oral or documentary evidence, constituting unfair labour practice.
5. The petition was not maintainable.
6. ' The counsel for the respondent after narrating the facts as detailed above argued that before removing him from service the respondent was not delivered any show-cause notice or an enquiry notice, and therefore, he was condemned unheard. Even the order of removal was not communicated to the respondent. When the respondent came back Pakistan in July, 1995, he reported for duty and then he came to know that he had been dismissed from service, as he had received serious head injury in U.S.A. On account of which the respondent remained under treatment. He had applied for leave but due to unavoidable circumstances beyond his control the respondent could not join. The order of his removal was void, and therefore, no limitation will be operative in his case.
7. It is a common contention by both the parties that the respondent proceeded on ex-Pakistan leave after making an application and thereafter, the respondent did not return back until July, 1995. The present petition under section 22-A(8)(g) of the I.R.O., 1969 was filed by the respondent after about one year of getting knowledge that he was terminated. That delay has not been explained. The petition, therefore, suffers from laches. It is also clear from the record that the removal of the petitioner was due to his unauthorized absence and not on account of his lawful trade union activities. As such the Commission lacks jurisdiction. The respondent could seek remedy in the Labour Court if he was aggrieved that proper procedure of enquiry or show-cause notice was not followed before his removal from service. No evidence was recorded by the Single Bench and after soliciting the reply statement from the appellant, arguments were heard and impugned order passed. The findings recorded by the Single Bench are, therefore, based on no evidence and cannot be maintained. Consequently, we are inclined to accept the appeal, set aside the impugned order dated 13-11-1996 passed by the Single Bench and dismiss the petition